A striking hazard on a public sidewalk.

The Appellate Division affirmed the granting of plaintiffs' motion for partial summary judgment on liability for personal injuries sustained when a door in a construction fence opened out onto the sidewalk and struck plaintiff. As a matter of law, the door was negligently installed insofar as it swung outward and was not recessed back from the sidewalk. Administrative Code of City of NY § 7-210 imposes a nondelegable duty on a property owner to maintain the sidewalk abutting its property in a reasonably safe condition. The striking hazard posed by a door opening across a sidewalk implicates this provision.

Spielmann v. 170 Broadway NYC LP, NY Slip Op 05608 (1st Dep't October 8, 2020)

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Appellate practice.

The Appellate Division reversed the order which, on defendants' motion, directed that the entire file be sealed, denied the motion, vacated the sealing order, and directed that the order dismissing the action be unsealed. Although the action was dismissed after the appeal was perfected, the appeal, which addresses the propriety of the sealing order, is not moot to the extent that the dismissal order, which is on appeal, is under seal pursuant to the sealing order.

Vergara v. Mission Capital Advisors. LLC, NY Slip Op 05610 (1st Dep't October 8, 2020)

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Appellate practice.

The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale. 

Bank of Am., N.A. v. Palacio, NY Slip Op 05480 (2nd Dep't October 7, 2020)

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A motion to restore the case and extend time.

The Appellate Division affirmed the denial of plaintiff's motions to restore the case to active status and extend its time to file a note of issue, and to vacate a prior order dismissing the complaint. The court providently exercised its discretion in dismissing the complaint after plaintiff, over a period of 1 1/2 years, violated multiple orders to produce documentary discovery, and, finally, failed to comply with the orders even after the court had, over defendants' rigorous objections, given him "one last chance." Plaintiff failed to support either his motion to restore or his motion to vacate with an excuse for his repeated failure to comply, or a demonstration of a meritorious claim.

White v. City of New York, NY Slip Op 05477 (1st Dep't October 6, 2020)

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Summary judgment on a claim for specific performance.

The Appellate Division affirmed denial of plaintiff's motion. He failed to establish, prima facie, that he substantially performed his contract obligations and was willing and able to perform his remaining obligations, and that defendants were able to convey the property. Plaintiff submitted no proof that he possessed the financial means to close the sale, and he submitted no proof that the individual defendant, who signed the contract of sale in his personal capacity, was able to transfer the property, which the record shows was owned by the corporate defendant.

Ahsanuddin v. Carde, NY Slip Op 05442 (1st Dep't October 6, 2020)

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A motion to domesticate a foreign judgment.

Reversing the order which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendant's cross motion to dismiss, the Appellate Division denied plaintiff's motion and granted defendant's cross motion. Plaintiff commenced the action against defendant, a Delaware limited liability company, to domesticate and enforce a foreign judgment in its favor several months after defendant had been dissolved and a certificate of cancellation filed. As the certificate of cancellation has not been nullified and plaintiff does not seek nullification, plaintiff cannot maintain this action.

Epie v. Herakles Farms, LLC, NY Slip Op 05283 (1st Dep't October 1, 2020)

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Summary judgment on a fall on a staircase.

The Appellate Division reversed, granted the defendant's motion, and dismissed the complaint. The design defect raised in plaintiff's opposition to the motion was a new theory that was not sufficiently pleaded to avoid surprise or prejudice.

Minor v. East Harlem Tutorial Program, Inc., NY Slip Op 05288 (1st Dep't October 1, 2020)

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A motion to reduce or discharge a mechanic's lien.

The Appellate Division reversed, denied the motion, and reinstated the lien. A court has no inherent power to vacate, modify, or discharge a notice of lien pursuant to Lien Law § 19(6) where there is no defect on the face of the lien, and any dispute concerning the lien's validity must await a trial. To the extent that the motion court relied on waivers in payment applications, plaintiff's submission of evidence of the parties' course of conduct raised an issue of fact as to whether the waivers released plaintiff's payment claims.

Pizzarotti, LLC v. FPG Maiden Lane LLC, NY Slip Op 05305 (1st Dep't October 1, 2020)

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CPLR 3213.

The Appellate Division reversed the Supreme Court, and denied the plaintiff's motion for summary judgment in lieu of complaint. Because the payment obligation in the parties' agreement is conditioned on defendant's having failed to operate the boat at issue within a particular geographic area for at least 80% of its running time over a period of years, the agreement is not an instrument for the payment of money only, and accelerated judgment is not available to the plaintiff.

Port Authority of N.Y. & N.J. v. White Near Coastal Towing Corp., NY Slip Op 05306 (1st Dep't October 1, 2020)

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An implied covenant of good faith and fair dealing.

The covenant cannot create independent contractual rights, or otherwise serve as a substitute for a plaintiff's nonviable contract claims.

Shionogi Inc. v. Andrx Labs, LLC, NY Slip Op 05308 (1st Dep't October 1, 2020)

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Waiver of a jurisdictional defense.

The defendant's appearance, through counsel, by service of an answer asserting counterclaims but no jurisdictional defense, waived his subsequently asserted defense of lack of personal jurisdiction. His motion to vacate the order of foreclosure and sale must be denied insofar as it is based on lack of personal jurisdiction, pursuant to CPLR 5015(a)(4). Because the defendant voluntarily submitted to the court's jurisdiction, the alleged inaccuracies in the filed affidavits of service do not support vacatur of the prior summary judgment motion, pursuant to 5015(a)(3).

Wells Fargo Bank, N.A. v. Sewer, NY Slip Op 05170 (1st Dep't September 29, 2020)

Here is the decision.